Cloaked In Paternalism: The Unconstitutional Reach Of The UP Anti-Conversion Act

The recent amendments seek to increase the already unreasonable imprisonment terms provided for in the Act. However, the most alarming feature unveiled is the classification of all offences under the act as non-bailable & cognizable, bringing the law at an equal footing with the bail denying provisions like that of the PMLA and the NDPS Act.

This amendment just further adds to the already long enough string of constitutional infirmities in the original act which is currently under challenge before the Hon'ble Supreme Court in the case of Citizens for Justice& Peace v. State of Uttar Pradesh.

Reason for Amendments

The amendments have been tabled in the backdrop of an alleged involvement of foreign and anti-national individuals & organizations in increasing religious conversions in the state. Further, it is contended that the provisions of the original act were not sufficient to address and deter the issue of religious conversions in the state, especially as regards to women, minors, the differently-abled and the mentally challenged.

The amendment introduces new 'twin conditions' for bail similar to those under the PMLA, the UAPA and the NDPS Act. Under the revised Section 7 of the Act, bail can be granted only if first, the public prosecutor is given an opportunity to oppose the bail application and second, that the court is satisfied that there are reasonable grounds for believing that the accused is innocent and will not commit any offence if released on bail. These twin conditions along with the reverse burden of proof on the accused to prove his innocence makes it virtually impossible for anyone to obtain bail until the completion of the trial.

Key issues with the Act:-

1. Violation of the Right to Privacy

The amendment significantly increases jail terms and fines for all the offences throughout the Act. Further, it introduces two new category of offences, the first being that of a minimum 7 year jail term extendable to upto 14 years for securing foreign funding for the purposes of unlawful conversion and the second, being the revision of Section 4 of the Act, which will now allow 'any person' to file a complaint under the Act, as opposed to only the aggrieved and his close kin earlier.

This will now allow virtually anyone to file complaints against any person under the Act and will open the floodgates for complaints by religious & communal organisations, who could misuse the draconian priovisions of the Act to harass bona fide religious convertors.

Further, drawing a parallel with the various Anti-Conversion Laws enacted by different states, what stands out as particularly alarming is that most of them only require a 60-day prior declaration of a person's intent to convert, which is to be submitted to the District Magistrate, however, the Uttar Pradesh Act goes a step further in this endeavour by mandating a police investigation into the conversion to determine the true intent,pupose and cause behind the conversion.

This raises fundamental questions as to the extent of the state's parens patrie powers in religious matters. Parens Patrie refers to the state's role as a guardian and protector of those who are unable to take care of themselves. However, this Parens Patrie cannot be unreasonably extended to the level of denying individual religious autonomy to an individual.

The Supreme Court in Lata Singh, quashed criminal proceedings against an inter-caste couple filed by their relatives disapproving of their marriage. It held the choice of a life partner, no matter the caste or religion is an exercise of one's fundamental right of marital choice and the State was under an obligation to protect this choice. Further, in the Hadiya Case, a young woman's conversion to Islam for marriage was challenged on the grounds of it allegedly being an instance of 'love jihad'—a term used to describe supposed forcible conversions of Hindu women through marriage. The Apex Court, however, ruled that Hadiya, as an adult, had the right to make decisions about her marriage, faith, and beliefs. The Court emphasized that these matters fall under personal autonomy and that the state should not interfere in such individual choices.

In the current context as well, Religious conversion should be considered to be a private and sanctified affair and an individual should not be subjected to state-sponsored moral policing by being subjected to police investigations to undercover the true nature of the impugned conversion. As was rightly held in K.S Puttaswamy that 'Privacy is the Constitutional Core of Human Dignity', the amended Act encroaches upon a person's Right to Privacy by empowering the state to throttle their personal liberty and privacy.

2. Promotion of Romantic Paternalism

The Act further reeks of Romantic Paternalism, which may be described as a protective discrimination which looks well-intentioned on the face of it, but ends up victimizing the very own subject it ventured out to protect. In the current context, the Act boasts to protect the weaker sections of the society which are often vulnerable to forced religious conversions, however, in the pursuit of the same, the Act ends up caging the privacy and religious autonomy of the very people it aimed to protect.

Further, taking into account the current political regime in Uttar Pradesh, the act seems to be a colorable piece

of legislation, carefully camouflaged to conceal its true purpose of promoting state sponsored moral policing on religious matters in the name of public well-being, especially with an abundance of communal organisations in the state, to further promote religious animosity and a feeling of antagonism.

3. Violation of Article 25 of the Constitution

The list of Consitutional infirmities does not end here as the Act further runs contrary to the principle of freedom of conscience and the right to practice, profess and propagate one's religion enshrined under Article 25 of the Constitution. The right to change one's religion flows as a necessary corollary to this right. The Supreme Court in Evangelical Fellowship, while dealing with the Constitutional validity of the Himachal Pradesh Freedom of Religion Act, 2006 held that prior notice to the authorities before conversion violated both freedom of conscience and right to privacy of an individual. It further held that the state had no right to ask a person to disclose their personal beliefs. Further, a person not only has the right of belief and the right to change his belief , but also to keep his beliefs secret. Even practically, such a disclosure would prejudicially affect the convertee as the reasonable risk of him being physically/psychologically harassed by others cannot be ruled out.

Moreover, Chandrachud J, in Para 188 of K.S Puttasawmy observed that the Right to freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world. Privacy is grounded within the dignity-liberty-autonomy triangle, not inhering in any particular Article of Part III, rather permeating through them all.

Lastly, As per the 235th Law Commission Report of India, titled- 'Conversion/Reconversion To Another Religion - Mode Of Proof', it was observed that the change from one religion to another is a consequence of one's own conviction and the belief that another religion will match up better to his/her spiritual needs and the Reason for conversion cannot be judged from the standards of rationality and reasonableness.

4. Undefined Mechanism for Enquiry

Notwithstanding anything stated till now, what turns out to be a crucual question is the lack of a clearly defined mechanism through which the state determines the legitimacy of a religious conversion, upon an enquiry conducted by the police authorities. There exists no detailed framework that explains how the police are supposed to conduct inquiries into the 'genuineness' of a religious conversion. The Act remains silent on this matter. The lack of the enumeration of any of these parameters renders such a provision manifestly arbitrary, vesting into the administrative authorities broad discretion in an individual's private and sanctified matter.

The Assertion of choice is an insegregable facet of liberty and dignity. The impugned Act is clearly a colorable exercise of the state's protective powers designed to enable state intervention in the process of changing one's faith, and to throttle one's privacy, autonomy and dignity. The freedom of conscience, as ensured by Article 25, loses its essence if every single instance of religious conversion is seen through the lens of suspicion and automatically assumed to be coerced and unlawful, requiring a convoluted state-led process to prove otherwise. As was rightly held in the Hadiya Case- 'Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow.' In a democratic society, the right to personal belief must be preserved as a pillar of individual freedom, not subject to the heavy hand of state control. By undermining this right, the Act risks eroding the very foundation of personal autonomy and the pluralistic fabric of our nation.

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